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RECENT CASES. 141
Renihan v. Wright, 125 Ind. 536, and that the surviving husband or wife, as
the case may be, controls this right rather than the next of kin. Weld v.
Walker, 130 Mass. 422; Durell v. Hayward, 9 Gray (Mass.) 248; Larson v.
Chase, 47 Minn. 307; Burney v. Children's Hospital, 169 Mass. 57, 47 N. E.
Though it is well established that after a burial, with the free consent
of the person having the right to control the same, such person is estopped
from removing the remains. Fox v. Cordon, 16 Phila. (Pa.) 185; Peters v.
Peters, 43 N. J. Eq. 140; Thompson v. Deeds, 93 Iowa 228. Yet if the remains
have been buried without such free consent, a court of equity may permit
such person to remove them. Weld v. Walker, 130 Mass. 422; Hackett v.
Hackett, 18 R. I. 155, 26 Atl. 42.
Homestead Lien — Borrowed Money — Contract — Indebtedness In-
curred After Homestead Right Attaches — Johnson County Savings
Bank v. Carroll, 80 N. W. 683 (Iowa). — Where a creditor loans money on
security, which is thereafter lost, he is not entitled to a lien on the homestead
although the money loaned was used to pay part of the purchase price.
Robinson, C. J., dissenting on the ground that same gives to the defend-
ant property which he never paid for, and holds it exempt from liability for
the purchase price actually paid by another.
In Eysier v. Hatheway, 50 111. 521, and Mitchell v. McCormick, 50 Pac. 216,
it was held that, in order to raise a lien on the homestead, it is not enough
to show that the borrowed money was used to pay for the homestead, but
it must also appear that it was a part of the contract that this should be
In Williams v. Jones, 100 111. 362, it was held that, although there be a
waiver of the vendor's lien by taking other security for purchase money
furnished, the holder of the indebtedness will not thereby lose the protec-
tion of the statute which provides that a homestead is not exempt from sale
for a debt or liability incurred for the purchase or improvement thereof.
In Christy v. Dyer, 14 Iowa 438, it was held that a debt for the purchase
money of premises occupied by the debtor as a homestead, is not a debt
arising after the purchase of such homestead; and the homestead may, there-
fore, be subjected to the satisfaction of same.
Injunction — Labels — Use of Private Name and Likeness — Atkin-
son v. John E. Doherty & Co., 80 N. W. 285 (Mich.). — Equity will not
restrain the use of the name and likeness of a deceased person as a label to
be used in the sale of cigars named after him, though he may not have been
a public character, so long as it does not amount to a libel.
This case has aroused wide-spread comment throughout the country, as
deciding that there is no law in Michigan against bad taste, and involves a
discussion of the law in regard to the so-called "right to privacy." How
much property right has a person in his name and portrait?
In Schuyler v. Curtis, 19 N. Y. Sup. 264, 64 Hun. 594, the Supreme Court
held that a preliminary injunction would be at the instance of the relatives
of a deceased woman to prevent her statue from being exhibited at the
World's Fair, and designated "The Typical Philanthropist." The case was
afterwards heard and a decree entered in accordance with the prayer of the
bill. Schuyler v. Curtis (Sup. 124 N. Y. Sup. 509). This decision was squarely
in conflict with the doctrine laid down in present case, but was reversed by
the Court of Appeals in 1895. See 42 N. E. 22, Gray, J., dissenting, the
opinion holding that "a woman's right of privacy, in so far as it includes the
right to prevent the public from making pictures and statues of her, does
not survive her, so that it can be enforced by her relatives." In Marks v.
Jaffa, 26 N. Y. Sup. 908, publication of portrait was enjoined apparently
on the strength of Schuyler v. Curtis, not then reversed.
142 YALE LAW JOURNAL.
Corliss v. Walker, 31 Lawy. Rep. Ann. 283, and note (S. C. 57 Fed. 434,
and 64 Fed. 280), denied an injunction to restrain the publication of a biog-
raphy of the great inventor, but granted it to restrain the publication of his
portrait. Subsequently this injunction was dissolved, on the ground that the
deceased was a public character, not a private individual. In the case under
discussion the court in commenting on the Corliss case questions the wis-
dom of the distinction, and says: "We are loath to believe that the man
who makes himself useful to mankind surrenders any right of privacy
In Murray v. Engraving Co., 28 N. Y. Sup. 271, it was held that a father
could not prevent the unauthorized publication of his child's photograph,
for the law takes no cognizance of a sentimental injury independent of a
wrong to person or property.
There are many authorities to the effect that a private individual has a
right to be protected in the representation of his portrait in any form, and
that this is a property as well as a personal right. Cf. Gee v. Pritchard, 2
Swanst. 402; Folsom v. Marsh, 2 Story 100, Fed. Cas. No. 4901; Tipping v.
Clarke, 2 Hare 383, 393; Prince Albert v. Strange, 1 Mach and G. 25. But the
court in the present case decides that the alleged right to privacy is not
under this particular state of facts a property right, and that so long as the
publication of the portrait does not amount to a libel, a court of equity will
not protect the relatives of the deceased against a mere injury to their feel-
ings, although a violation of the canons of good taste. "The law," says the
court, "does not discriminate between persons who are sensitive and those
who are not."
Insolvent Corporations — Secret Preference of Creditors —
United States Rubber Co. et al. v. American Oak Leather Co., 96 Fed.
841. — Where a corporation that is about to fail, in order to gain time and
borrow money, makes an arrangement with some of its creditors whereby
they are to be put in charge of the concern and be given judgment notes
covering what is due them and thereby are to prevent preferences to other
creditors, such an arrangement is a fraud in fact on the general creditors.
Courts have recognized the justice of allowing embarrassed concerns to
tide over difficulties by using their property in any way they may see fit.
Preston v. Spaulding, 125 111. 20; White v. Cotshausen, 129 U. S. 329. But
they have further recognized that one cannot convey all his property and
stop doing business. Kelloy v. Richardson, 19 Fed. 70, 72. It then becomes
a question of what was the intention of the insolvent concern in entering
into obligations like those in the present case. How close a question this
often is, is well illustrated by the case before us. We see how frequently
the judicial mind may differ on this point, and in view of the large interests
that may be concerned in such case, how important it is that a transaction
should be considered as actually fraudulent only on the strongest proof or
actual knowledge. Street v. Bank, 147 U. S. 36.
Insurance— Agent— Authority — Notice — Policy — Endorsement
—Warranty — Northrup et al. v. Piza, 60 N. Y. Supp. 363. — A fire insur-
ance policy was issued by general agents and attorneys of a fire insurance
company on recommendation of a firm of fire insurance brokers, said policy
containing material warranty on the part of the insured. Subsequently an
addition was made to the policy in which no mention was made of the war-
ranty. Held, that a broker having only authority to solicit risks, recommend
same, and receive premiums (these services being paid for by commissions),
is not an agent of the insuring company, and hence notice to him is not
notice to the company. Also that attachment of said endorsement, see
supra, did not abrogate original warranty clause.